I get panicked calls virtually every week from Texans whose spouses have died without a Will.
The stories are usually quite similar. The spouses lived together in a home they purchased together during their marriage. Or perhaps one spouse owned the home before marriage.
After the spouse’s death, children from the deceased spouse’s prior marriage claim ownership rights in the couple’s home. This comes as a shock to the surviving spouses who assumed they would automatically inherit their deceased spouse’s property. They ask:
- Do my stepchildren really own part of my home?
- Can I sell my home without my stepchildren’s approval?
- If I sell my home, will I have to share the proceeds of the sale with my stepchildren?
- Can my stepchildren force me to sell my home?
- Can my stepchildren evict me?
Texas Intestacy Statutes
The Texas intestacy statutes control who inherits property when someone dies without a Will in Texas. Many factors, such as whether you are a parent, are married or single, and how your property is characterized, will dictate who inherits your property when you die.
In Texas, when a married person dies without a Will and leaves children from another relationship, the surviving spouse gets to keep her own one-half interest in community property. The deceased spouse’s share of community property passes to his children in equal shares.
Additionally, a surviving spouse inherits only one-third of the deceased spouse’s separate personal property, with the remaining two-thirds passing to the deceased spouse’s children.
If the deceased spouse died leaving real estate that is classified as separate property, the surviving spouse inherits only a life estate in one-third of that property. The deceased spouse’s children inherit the remainder interest.
This comes as a shock to most surviving spouses who find that they no longer own full interest in their own homes.
Constitutional Homestead Protections for Surviving Spouses
Does this mean that stepchildren can force a surviving spouse sell the home or evict the surviving spouse?
The short answer is: no. Certain constitutional protections are available for surviving spouses in Texas. Surviving spouses have a constitutional life estate in their homestead. Stepchildren cannot force surviving spouses to sell the property as long as they occupy and use it.
The property’s heirs may be able to take possession of the property if they can show that a surviving spouse abandoned it. However, abandonment is hard to prove, and there is authority stating that the surviving spouse can retain a life estate even if the surviving spouse moves out and rents out the property to someone else.
Nevertheless, if the surviving spouse sells the property or elects to no longer use or occupy the property as a homestead, then the proceeds of the sale can be divided among the respective owners of the property.
If you’re part of a blended family and want your spouse to inherit all your property, talk with a lawyer about how to accomplish that objective. Because without a Texas Will, the rigid intestacy laws will control.
This article was originally published on October 31, 2014 and updated on June 25, 2021.
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